CASE OF ASSOCIATION OF CITIZENS RADKO & PAUNKOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no. 74651/01)
15 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Association of Citizens Radko & Paunkovski v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 19 June 2008 and on 9 December 2008,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the Macedonian Government
Ms R. Lazareska Gerovska, Agent,
(b) for the applicants
Mr Y. Grozev, Counsel,
Ms N. Dobreva, Adviser.
(c) for the Bulgarian Government
Ms S. Atanasova, Co-Agent.
The second applicant was also present.
The Court heard addresses by Ms Lazareska Gerovska, Mr Grozev and Ms Atanasova.
I. THE CIRCUMSTANCES OF THE CASE
A. The Association’s Articles of Association
“The Association has the following objectives and tasks:
it endeavours to raise and affirm the Macedonian cultural space;
it endeavours to establish traditional ethical and human values;
it endeavours to popularise the objectives, tasks and ideas of the Macedonian Liberation Movement through the publication of its own newspaper, publishing activity and library, and through its own electronic media, seminars, conferences, forums and other forms of cultural action.”
“- the individual and collective activities of the members, bodies and structures of the Association,
- cooperation between the Association and other similar associations and structures, inside the country and abroad”.
“Every citizen of the Republic of Macedonia and citizens of a foreign state may become a member, if they have reached the age of 18, after signing a membership application”.
B. The Association’s Programme
“The Association is founded as a non-governmental, non-party and non-political organisation with the purpose of raising and affirming the Macedonian cultural space, establishing traditional ethical and human values, affirmed in the ideas of the Macedonian Liberation Movement, through the publication of its own newspaper, publishing activity and library, and through its own electronic media, seminars, conferences, forums and other forms of cultural action.
For the above objectives, the Association will organise public forums, with the participation of outstanding cultural and scientific scholars from inside the country and abroad, through its local committees.”
C. The Association’s promotional leaflet
“a. Name of the Association
The founders of the Association have taken as its name the most frequently used pseudonym of Ivan Mihajlov, RADKO.
Ivan Mihajlov-Radko, his name, his life, his revolutionary activity and especially his cultural and literary activity are deeply woven in the history of Macedonia. Praised, but also denounced by his ideological adversaries, he became and still remains a legend for his ideological companions, including the founders of this Association. Although his work is yet to be evaluated, it is undisputable that under his leadership the Macedonian Liberation Movement became an example of the human spirit’s love of freedom. Thus, he placed an obligation on future generations to complete the holy liberation.
Ivan Mihajlov headed the Movement for an extremely long period (1925-1990). He remained and worked as an intellectual and moral pillar of the revolutionary and cultural struggle of the Bulgarians from Macedonia. This allows us to state that his publications are the most authentic and most reliable evidence of the ideological content of the Macedonian Liberation Movement. Due to their factual reliability they remain as historical evidence of unquestionable scientific value. His written legacy provides the present and coming generations with the most concrete evidence of the revolutionary and cultural struggle of the Bulgarians from Macedonia. Of this legacy, the most important [work] is his four-volume “Memoirs”, which are a national treasure of unchangeable value in the recent history of Macedonia.”
b. The Association aims to:
- raise and affirm the Macedonian cultural space, having as its priority the cultural and historical identity of the Slavs from Macedonia who have appeared as Bulgarians throughout the centuries;
- establish traditional ethic and human values;
- affirm the ideas of the Macedonian Liberation Movement.
c. The Association realises its objectives through:
- own book-publishing activity, publication of its own newspaper and its own electronic media;
- the organisation of conferences, seminars and forums with outstanding scientific and cultural scholars from the country and abroad;
- cooperation with scientific, cultural and educational institutions, and with similar associations and organisations from the country or abroad.”
D. The procedure before the Constitutional Court and subsequent events
“...the aims of the Association are the infiltration of Bulgarian linguistic elements into the Macedonian language and alphabet...”
“The Association promotes Vančo’s (meaning Ivan Mihajlov’s) ideology for a change in the national conscience of the Macedonian people in favour of another one, which destroys the Macedonian national texture and leads to the encouragement of and incitement to national hatred and intolerance. The Association rehabilitates and legalises terrorism and fascism as crucial characteristics of the work of Hitler’s collaborator Vančo Mihajlov, as an “act of holy liberation” and as a legacy that is left to someone to complete...The Slavs from Macedonia who appeared as Bulgarians (Болгари) throughout the centuries...are unknown in the Republic of Macedonia. They do not exist as a nation, any nationality or legitimate entity whatsoever. There are only Macedonians in Macedonia, and there also might be Bulgarians, Serbs...as affiliated to different people and nations. However, there are no “Slavs from Macedonia-Bulgarians”.
“well-founded doubts that the Association’s Articles and Programme were directed towards violent destruction of the constitutional order of the Republic of Macedonia and incitement to national or religious hatred or intolerance, and that as such they are not in conformity with the Constitution of the Republic of Macedonia”.
“According to Ivan Mihajlov’s teaching, Macedonian ethnicity never existed on this territory, but belonged to the Bulgarians (Болгари) from Macedonia and its recognition (i.e., that of Macedonian ethnicity) was the biggest crime committed by the Bolshevik headquarters during its existence. According to his teaching, the process of de-bulgarisation of Macedonia, which was violently carried out after the Second World War, was a [form of] slavery executed by the Serb-communist regime and such Serb-communist doctrine continued to be the official one of the State after it became independent in 1991.
In line with those arguments, the founders of the Association “Radko” took the following as their main Programme objectives: (1) to raise and affirm the Macedonian cultural space, having as a priority the cultural and historical identity of the Slavs from Macedonia who have appeared as Bulgarians throughout the centuries; (2) to establish traditional ethic and human values; (3) not to forget the Bulgarian ethnic origin of the Macedonian people, as that would mean a denunciation of its tradition and culture.
Affirmation of the ideas of the Macedonian Liberation Movement, according to the Association, in fact means relief from “Macedonianism”, as a Serb-communist doctrine, and from the “imagined Macedonian nation” which was used as an open door for the accession of the whole of Macedonia to Yugoslavia.
Taking that into consideration, the court holds that the Articles and the Programme of the Association of Citizens “Radko”- Ohrid are directed towards the violent destruction of the constitutional order of the Republic of Macedonia and to incitement to national or religious hatred or intolerance, and finds that they are not in compliance with the Constitution of the Republic of Macedonia.”
“... the court has taken into consideration that citizens’ freedom and right to association and activity, as part of the corpus of human rights and freedoms, are among the fundamental values for the existence and development of democratic relations in the functioning of government in the Republic of Macedonia, oriented towards its citizens and their rights, freedoms, interests and aspirations. They are also the basis for the accomplishment of the constitutional determination of the Republic of Macedonia as a democratic state. This being so, the above freedom and right are explicitly guaranteed in Article 20 §§ 1 and 2 of the Constitution of the Republic of Macedonia.
However, the court finds that the freedom and right to association, organisation and activity cannot be taken to indicate approval for all objectives and the choice of means to attain them.
The principles and safeguards for exercising freedom of association and activity are explicitly determined in Article 20 § 3 of the Constitution, which bans the Articles and activities of associations of citizens which are directed towards the violent destruction of the constitutional order of the Republic and to incitement to national or religious hatred or intolerance. Furthermore, Articles 1, 3 and 8 of the Constitution protect the sovereignty and territorial integrity of the Republic.”
“The Articles and the Programme of the Association, read in the light of the prohibitions set forth in Article 20 § 3 of the Constitution, must be interpreted as aims which directly and explicitly call for destruction of the constitutional order, i.e. they explicitly encourage an incitement to national hatred and intolerance, and as such they are to be treated as aims and activities that are objectively directed towards what is banned by the Constitution.
In this context, the court takes into consideration the Preamble to the Constitution of the Republic of Macedonia, which takes as a historical fact that Macedonia is constituted as a national state of the Macedonian people and that every activity directed towards denunciation of its identity is in fact directed towards the violent destruction of the constitutional order of the Republic and towards encouragement of or incitement to national or religious hatred or intolerance and towards denunciation of the free expression of its national affiliation.
Bearing this in mind, the court found that the Programme and the Articles of the Association of Citizens “Radko”- Ohrid are directed towards the violent destruction of the state order; hindrance of free expression of the national affiliation of the Macedonian people, i.e. negation of its identity and incitement to national or religious hatred or intolerance.”
II. RELEVANT DOMESTIC LAW
A. The Constitution of the Republic of Macedonia
“...the historical fact that Macedonia is established as a national state of the Macedonian people, in which full equality as citizens and permanent co-existence with the Macedonian people is provided for Albanians, Turks, Vlachs, Roma and other nationalities living in the Republic of Macedonia...”
“The citizens of the Republic of Macedonia, the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romany people, the Bosniak people and others ...”
“Citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions.
Citizens may freely establish associations of citizens and political parties, join them or resign from them.
The programmes and activities of political parties and other associations of citizens may not be directed at the violent destruction of the constitutional order of the Republic, or at encouragement of or incitement to military aggression or ethnic, racial or religious hatred or intolerance.
Military or paramilitary associations which do not belong to the Armed Forces of the Republic of Macedonia are prohibited.”
“Every citizen may invoke protection of the freedoms and rights set forth in the Constitution before the courts, including before the Constitutional Court of the Republic of Macedonia, in a procedure based upon the principles of priority and urgency.
Judicial protection of the legality of individual acts of the state administration, as well as of other institutions carrying out public mandates, is guaranteed.
A citizen has the right to be informed about human rights and fundamental freedoms and also actively to contribute, individually or jointly with others, to their promotion and protection.
Article 110 §§ 3 and 7
“The Constitutional Court of the Republic of Macedonia:
- protects the freedoms and rights of the individual and citizen relating to freedom of conviction, conscience, thought and public expression of thought; political association and activity; and the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation;
- decides on the constitutionality of the programmes and statutes of political parties and associations of citizens...”
Article 112 §§ 2 and 3
“The Constitutional Court shall repeal or invalidate a collective agreement, other regulation or enactment, statute or programme of a political party or association, if it finds that they do not conform to the Constitution or law.
The decisions of the Constitutional Court are final and enforceable.”
B. Associations of Citizens and Foundations Act (“the Act”)
“Citizens may freely associate in associations of citizens and may establish foundations in order to accomplish and protect their economic, social, cultural, scientific, professional, technical, humanitarian, educational, sports and other rights, interests and beliefs in conformity with the Constitution and laws.
Associations of citizens and foundations shall be non-profit organisations.”
“The Programmes and activities of associations of citizens and foundations shall not be directed towards:
- the violent destruction of the constitutional order of the Republic;
- encouragement of or incitement to military aggression; and
- encouragement of national, racial or religious hatred or intolerance.”
“An association of citizens shall cease to exist:
... if the Constitutional Court of the Republic of Macedonia decides that the Programme and the Articles are not in conformity with the Constitution...
The person authorised to represent the association of citizens shall be obliged to notify the first-instance court of the circumstances as described in paragraph 1 within 15 days.
The first-instance court shall determine the cessation of the association of citizens by adopting a decision in non-contentious proceedings. “
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others ...
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”
A. The parties’ submissions
1. The applicants
45. At the hearing the applicants reiterated that their interpretation of the history of the Slavic people in Macedonia was markedly different to the official historiography of the State. State protection of one account of history, even if the latter is crucial to the country’s national identity, through the banning of other alternative accounts of history, was something that runs contrary to the most fundamental principles of freedom of expression and association. While the interpretation of the history of Macedonia by the applicants might be offensive to many in Macedonia, it clearly did not contain any element of an attack against democratic rules or promotion of violent means.
2. The Government
3. The third-party intervener
B. The Court’s assessment
1. Was there an interference with the applicants’ rights under Article 11 of the Convention?
2. “Prescribed by law”
3. Legitimate aim
4. “Necessary in a democratic society”
(a) General principles emerging from the Court’s case-law
(b) Application of these principles in the present case
76. The Court reiterates its case-law, under which a State cannot be required to wait, before intervening, until an association had begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others, cited above, § 102). However, sweeping measures of a preventive nature to suppress freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities, and however illegitimate the demands made may be – do a disservice to democracy and often even endanger it. One of the principal characteristics of democracy is the possibility it offers of resolving problems through dialogue, without recourse to violence, even when those problems are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a group solely because it seeks to debate in public certain issues and to find, according to democratic rules, solutions (see Çetinkaya v. Turkey, no. 75569/01, § 29, 27 June 2006; Stankov and the United Macedonian Organisation Ilinden, cited above, §§ 88 and 97; and United Communist Party of Turkey and Others, cited above, § 57). To judge by its constitutive acts, the Court considers that that was indeed the Association’s objective. In addition, the Association confined itself to realising these objectives by means of publications, conferences and cooperation with similar associations. The Association’s choice of means could hardly have been belied by any practical action it took, since it was dissolved soon after being formed and accordingly did not even have time to take any action. It was thus penalised for conduct relating solely to the exercise of freedom of expression. In this connection, the Court points out that it is not in a position nor is it its role to take the side of any of the parties as to the correctness of the applicants’ ideas. It is therefore without relevance that the applicants did not distance themselves explicitly from what the Constitutional Court established as the Association’s real aim.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. ....
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,
(i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(ii) EUR 4,000 (four thousand euros) in respect of costs and expenses, to be paid into the bank account of the applicants’ representative and to be converted into the national currency of the State in which that representative resides, at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English and French and notified in writing on 15 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Peer Lorenzen
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge M. Lazarova Trajkovska is annexed to this judgment.
DISSENTING OPINION OF JUDGE LAZAROVA TRAJKOVSKA
I deeply disagree with the majority of my colleagues in declaring the application in this case admissible and finding a violation of Article 11. My dissenting opinion is based on two main concerns: the first is a formal one and has to do with the principle of exhaustion of domestic remedies; the second counter-argument deals with the interpretation of the goals and activities of the Association of Citizens Radko.
The majority in the Chamber have accepted that this case concerns the Association’s dissolution based on the Constitutional Court’s decision from 21 March 2001 declaring the Association’s Articles and Programme unconstitutional.
From the facts of this case, it is clear that the dissolution of the Association is a result of the final decision that was taken by the Bitola Court of Appeal on 11 February 2002 when the resolution of the Ohrid Basic Court from 16 January 2002 became effective. This means that the Association was dissolved ten months after the Constitutional Court’s decision and seven months after the application was lodged with the European Court of Human Rights (on 30 July 2001). The majority of my colleagues ignored the fact that at the time the application was lodged the Association was registered and active and that the dissolution of the Association took place seven months after the application was lodged. In these circumstances it is not acceptable as a ground for a violation of Article 11.
After the decision of the Bitola Court of Appeal, the applicants had at their disposal a domestic legal remedy for the protection of human rights and freedoms that they did not use, but instead lodged their application with the European Court of Human Rights. The applicants did not make use of a constitutional complaint to the Constitutional Court, a prescribed domestic legal remedy provided for in Article 110 § 3 of the Constitution of the Republic of Macedonia. Thus, ignoring the domestic remedies and failing to exhaust them, the applicants decided to apply directly to the European Court of Human Rights before the Association was even dissolved. I am of the opinion that in this case the constitutional complaint was a unique and extremely important effective domestic remedy in respect of Articles 11 and 10 of the Convention. Therefore, the domestic courts were not able to address the applicants’ claims that were submitted to the European Court of Human Rights.
Article 35 § 1 of the European Convention on Human Rights provides:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
What is the idea behind this provision of Article 35? To oblige applicants to use all available domestic remedies within a clearly prescribed period (six months from the date on which the final decision was taken). In the Nielsen case the Commission was clear on this rationale, stipulating that “[t]he respondent State must first have an opportunity to redress by its own means within the framework of its own domestic legal system the wrong alleged to have been done to the individual” (Nielsen v. Denmark, no. 343/57, Commission decision of 2 September 1959, Yearbook 2, p. 438). This approach of the Commission was accepted and further developed by this Court when it strongly stressed (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 III) the following point:
“The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and where appropriate, to afford redress before that allegation is submitted to the Court.”
My second concern is about the approach towards the decision of the Constitutional Court. The decision of that court is connected only with the constitutionality of two legal acts of the Association and this decision was prescribed by law. Article 4 of the Associations of Citizens and Foundations Act reads as follows: “The Programmes and activities of associations of citizens and foundations shall not be directed towards: the violent destruction of the constitutional order of the Republic; ... encouragement of national, racial or religious hatred or intolerance”. The Constitution in its Article 20, third paragraph, stipulates: “The programmes and activities of political parties and other associations of citizens may not be directed at the violent destruction of the constitutional order of the Republic, or at encouragement of or incitement to military aggression or ethnic, racial or religious hatred or intolerance”.
In the decision of the Constitutional Court, the main argument is that the Association’s Articles and Programme “explicitly encourage an incitement to national hatred and intolerance and as such they are to be treated as aims and activities that are objectively directed towards what is banned by the Constitution”. The court decided that the denial of existence of the Macedonian nation (the main goal of the Association) by calling its people Slav Macedonians of Bulgarian origin was a serious and historically used ground for violence and national intolerance. In this regard the Constitutional Court played its role of safeguarding the Constitution and democracy in a democratic society and of protecting the rights and freedoms of others. The logic is that no one is allowed to misuse freedom of association with the aim of promoting ideas of disrespect and discrimination against others’ rights.
The applicants were registered and were able to exercise freedom of association. In exercising their right to free expression and association, it was established that through their activities they provoked violent behaviour and disregard of the human rights of other citizens. The Constitutional Court judged that the grounds for such behaviour were laid down in the Programme and Articles of the Association.
I see this judgment as legitimate and in accordance with the Constitution of the Republic, and in accordance with the case-law of the European Court of Human Rights. Since Handyside v. the United Kingdom (7 December 1976, § 49, Series A no. 24) this Court has, in many other cases, stipulated that the right to freedom of peaceful assembly and association is “applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any other sector of the population”. However, this broad and open approach does not cover hate speech that is offensive to others, or incitement to violence. It is indeed difficult to accept that the Association’s policy of denying the national identity of people in their State is in harmony with the Convention and the values of democratic society.
Freedom of association is not absolute. Article 11 does not deprive the State of the power to protect institutions and persons from an association which, through its activities or intentions (as expressly or implicitly declared in its programme), jeopardises the State’s institutions or the rights and freedoms of others. The Court, in Gorzelik and Others v. Poland (no. 44158/98, § 65, 20 December 2001) stated as follows:
“the applicants could easily have dispelled the doubts voiced by the authorities, in particular by slightly changing the name of their association and by sacrificing, or amending, a single provision of the memorandum of association ...Those alterations would not, in the Court’s view, have had harmful consequences for the Union’s existence as an association and would not have prevented its members from achieving the objectives they set for themselves.”
The Grand Chamber subsequently came to the same conclusion as the Chamber in that case.
In this particular case, the national authorities had assessed that there was a “pressing social need”, in the general interest, to impose a given restriction. The rationale of the Constitutional Court’s judgment was guided by the fact that no restrictions should be placed on the exercise of the right to freedom of peaceful assembly and to freedom of association with others, other than those that are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
In the present case the pressing social need was to protect the right of the members of the Association to free expression and association whilst protecting at the same time the right of the majority of citizens of the Republic of Macedonia to enjoy freely their human right to self-identification as Macedonian nationals. The Constitutional Court reasoned legally that the Association’s Articles and Programme, as implemented in practice, meant and were understood as a denial of the Constitutional norm that the State of the Republic of Macedonia is constituted as the national State of the Macedonian people.
The denial of this historical fact runs against the argument that the Court developed in the case of Gorzelic v. Poland (cited above, § 66), when it stated as follows:
“The Court would also point out that pluralism and democracy are, by the nature of things, based on a compromise that requires various concessions by individuals and groups of individuals. The latter must sometimes be prepared to limit some of their freedoms so as to ensure the greater stability of the country as a whole.”
In the light of that judgment, I confidently accept as legitimate and in accordance with the Convention the decision of the Constitutional Court of the Republic of Macedonia to interpret the Programme and Articles of the Association Radko as a basis for national intolerance and hatred, and thus to declare them unconstitutional. The applicants misused the right to freedom of assembly and association contrary to the text and spirit of the Constitution and the Convention. Therefore the interference of the Constitutional Court was necessary in a democratic society within the meaning of the Convention.
For the reasons set out above, justifying my two main concerns, my opinion is that application no. 74651/01, Association of Citizens Radko and Paunkovski v. the former Yugoslav Republic of Macedonia, should have been declared inadmissible.